J 



■ 'SIS 








BRIEF ANALYSIS 




OF THE 



ILITARY BILL, 



MEMBER OF THE NEW ORLEANS BAR. 



++xt* 



PRESIDENT JOHNSON'S DUTIES ARE DEFINED AND LIMITED BY SECTION 

TWO OF THE LAW. HE CANNOT PEREMPTORILY INSTRUCT THE 

DISTRICT COMMANDER AS TO THE DUTIES OF THE 

LATTER. DESIGNATED BY LAW. Pago i. 




N E W ORLEANS: 
PRINTED AT THE OFFICE OF THE REPUBLICAN, 57 ST. CHARLES STKK.KT 

ift67- 




INTRODUCTORY LETTER. 



New Orleans, La., June IT. 1861. 

Colonel George A. Forsyth, U. S. A.. 

Secretary of Civil Affairs, Fifth Military District: 
Having previously submitted to your consideration an inconven- 
ient form of an analysis of the Military Bill, 1 now have the honor to 
address the same in a more desirable form with a few additions and 

corrections. 

This law of Congress ami its practical effects now powerfully ab- 
sorbs public attention. The people of the South arc not alone affected 
by it. The whole nation is vitally interested and deeply moved 
by it. History furnishes no parallel instance of a greal nation con- 
vulsed by so gigantic a rebellion and finally eventuate in an adjust- 
ment in the manner foreshadowed by Congress in this law. 

Being without a parallel instance, and the law itself not free from 
ambiguity in m*ny respects— the analysis was depended alone 
upon the points given and deductions from elementary principles. 
No precedents, no exampled authorities to quote. 

New. delicate ami extraordinary duties, powers and responsibili- 
ties are imposed on the District commanders by the general features 
of the law, hut all this was heightened and intensified by the super- 
added new feature of the extension without blame, of universal suf- 
frage to the lately disenthralled black race. 

The views and legal deductions contained in the annexed analysis 
are the result of a close and earnest effort, first written in discharge 
of my official duty, to Brevt. Major General Joseph A. Mower, com- 
manding- in this State next to Major General P. H. Sheridan. These 
views and conclusions having been matured with an aim of befitting 
dignity to the proper discharge of my duty as attorney, it required 
but little additional labor to embrace some additional points not then 
,-alled out, and to prepare extra copies at intervals, which I was 
pleased to see found a ready welcome in the New Orleans Republican, 
ou different days. 

It will he seen on page 8, the first article appeared May 30th, 
under the caption : " Registration," hut it is appropriately pari ami 
parcel of the analysis, and was elicited hy the lirst announcement 
of the elaborate opinion of Attorney General Stanbery, whose cramp- 
ing opinion was delusively supposed hy a majority of the public to 
be a finality, and binding with the force of an edict upon all authori- 
ties, the Picayune, Crescent, and Times, and kindred papers using ex- 
traordinary exertions to foster and keep alive that delusion. 



2 LEGAL ANALYSIS OF 

Extraordinary measures) also, were more than hinted and radiated 
broadcast, thai President Johnson then would soon issue or 
cause to be issued, peremptory instructions, overriding the district 
commanders, by directing implicit conformity to the announced opin- 
ions of the Attorney General, in all matters of duty under the law, 
as also interpose other positive executive interference. 

This prompted me to follow the subject by a held and square de- 
nial that President .Johnson had any such authority, under the law 
designated. Announced June 4. see page 4. 

The point plainly staled thus: 

" We thus see he, (district commander), must look to Congress and laws thereof 
for authority and guidance in this matter of rebel State reconstruction, and not look 
to the President or General Grant. 

The Presidenl can appoint— perhaps remove and reappoint. But we take it he 
cannot instruct, for the law nowhere says so, and his duties also are defined by law. 
This latter position is capable of a demonstration akiu to mathematical precision." 

This position being entirely new and made public for' the first 
time, of course met the prompt simulated ridicule of the opposition. 
and even many of our own friends had doubts and misgivings as to 
its complete correctness, recollecting thai the constitution made the 
President "Commander in Chief of the Army and Navy," and not 
seeing at tirst glance that the district commander, under the Military 
bill, occupied a standpoint entirely distinct from ordinary army 
duties and army routine of implicit obedience to orders. I deemed 
it necessary to meet and overturn that delusion, which exposition 
appeared June T, page 4. 

Paragraph thirteen of the summary makes this prediction : 

•• It is highly improbable that t lie Secretary of War will counsel interference l>\ 
peremptory instructions. He is himself too good a lawyer for that." Page 7. 

This was penned on the LOth .lune, but did not appeal' until the 
12th; and on the loth, 1 had the gratification of soeing my prediction 
confirmed by the Washington city news, thai Mr. Stanton's silence 
iu cabinet counsel was clearly regarded a dissent to the views of 
the Attorney General; and thai General 'Irani was not present, 
which, under the circumstances, seemed to possess a significance not 
io be misundersti lod. 

Ii will be further noticed, as early as June 7, 1 predicted President 
Johnson would uol interfere, no matter how strong his desire; but 
thai if lie did, " Congress would be heard in tones nol to be misun- 
derstood." Page 5. 

This conclusion was based upon the theory thai each of the three 
co-ordinate branches of governnienl has ;i distinct sphere assigned 
by the Constitution, and thai the executive could uol step into the 
legislative phere with impunity; thai Congress alone has power to 



CHE MU.1VAKV BILL. 



3 



declare war, and al the termination thereof, make final adjustments 

in its own way. _ . 

Concerning any delicate case thai may chance to spring the qw» 
,;,„,,,,• H.-hi to the writ ol habeas carpus, under the constitution, 
article 1, section 9, paragraph 2, for the sake of brevity, I deem .1 
unnecessary to now dwell, being virtually already anticipated. 

1 have ao vanity in this matter, and of course 1 have not lost 
sio-ht of tin- fact, that Major General P. H. Sheridan, lor many 
months, has acted in advance of all 1 have said. Bui he has also 
far outrun the Attorney General, and justly. 

Repeating my apology first named, and hoping what I have writ- 
ten may have the good fortune to not conflict with General Sheridan s 
views of propriety, 1 remain, 

Your obedient servant. j R B0Y |). 



[Published June 4, 1867.] 

THE MILITARY BILL. Legal Analysis Thereof. 



Occupying the high standpoint you do in the greatest city ... the South * is 

„, l e whole loyal Sou,!, should turn to yon and your paper for a solufcon o 

' 1V intricate, and doubtful questions, now vitally affecting he whole 

topTe Alread, your paper has silenced the three rebel guns In us citj on the 

Set of the du'ty ol registrars, as affected by the Attorney Genera . opinion. 

The political attitude of the rebel States has no para lei m history TherniL 
t , rv > 11- „ an anomaly, but is unquestionably justifiable, and in truth* the mild- 



LEGAL ANALYSIS OF 



and denounced by the opposition press of this city as ihe unconstitutional bastard 
offspring of a '■ rump Congress." 

A clear analysis of that law shows that it is too lenient, and in reality was a com- 
promise of many widely variant plans. The preamble lirst asserts a fact notorious 
to all people, that " No legal State governments, or adequate protection for life or 
property, now exist in the rebel States." Such being the case, it became and was 
the duly of -Congress to speedily apply an ample remedy. 

Let us see it they have done so. 

First section declares •• that said rebel States shall be divided into military dis- 
tricts and made subject to ihe military authority of the United States. - "' To stop 
there, would give unlimited military power over all matters. But the law does 
not stop there. On ihe contrary, it defines the district commander's duties very 
considerably. 

Sec. 3. " It shall be the duly of each officer assigned as aforesaid to protect all 
persons in their rights of person and property." 

Secondly. " To suppress insurrections, disorders and violence." 

Thirdly. " To punish or cause to be punished all disturbers of the public peace 
and criminals." This sweeps in many things. But wait a little. 

Let us see how tie officer is to perform all this work so rigorously pointed out. 
Does he have the full sweep of the whole circle of his discretion? Very far from 
it. He has a prescribed orbit lixed and but dimly seen. Section three declares 
that he may allow local civil tribunals to have jurisdiction and try offenses. Not a 
word about ordinary actions or stuls at law. Again the law says, '• when in his 
judgment it may be necessary for tl e trial of offenders, be shall have power to or- 
ganize military commissions or tribunals for that purpose." For what purpi se 
are military commissions to be organized? Answer — to try offenders ; not to at- 
tend to civil suits at law. When to be organized ? At the discretion of the officer. 
The whole gist of authority limited to offenses and offenders. This, of course, in- 
cludes offenses to rights ol property as well as to rights of person ; against rights of 
property, as in theft, arson, robbery, trespass, etc. Not collection of debts. 

Section '.'>, last clause, declares " there shall lie no interference under color of 
State authority :" which implies that for civil purposes the defacto State govern- 
ments may continue many of their functions under straint, so that the wheels of the 
entire civil machinery need not be brought to a stand-still. ' 

"Whether all three, of the co ordinate branches of the government, legislative, ex- 
ecutive, an 1 judicial, can continue their functions de facto, springs new and deli- 
cate questions, especially as to the legislative branch. 

< tne th ng is clear, these Stales lingering in a (jitusi war attitude are now subject 
to the military authority of the United States, which authority in turn is subject, in 
this behalf, to the paramount authority of Congress. This latter cuts off much 
paramount military authority supposed to exist in the hands ol the district military 
commander, and toi thus set h mustlookto Congress and laws thereof for authority 
and guidance in this matter of rebel State restoration, and not look to the Presi- 
dent or General Grant. The President can ap oint- perhaps remove and reap- 
point. Bui we take il lie <-.i, ,,,<>! instruct, lor ihe law nowhere says so. ami Ms 

also a^e defined by law. This latter position is capable of a demonstration 
akin to mathematical precision, and yel doubtless il will astound th • entire opposi- 
tion. We admit th.' President and General Grant may counsel, advise, and suggest. 
For a future analysis we reserve the delicate legal questions: 1 low far district 
commanders are limited by law ; what is the orbit of their discretion ; when they 



THE MILITARY BILL. 5 

may legally remove civil officers ; whether and when they ran remove State gov- 
ernors ; when remove judicial or ministerial officers; when suspend or annul a 
judicial decision or civil writ : and what, if any of those tilings they can do. unless 
to prevent "interference under color >f State authority." in which case no diver 
sity of opinion can exist. 

LIMITED TOWER OF THE PBESIDENT. 
[Published .Tune 7, 1907.] 

We now only have time (o partially continue the analysis promised in your 
daily of the 4th inst. 

Touching many delicate points last named we must defer, for the present, in 
order to pay our respects to objections made to our startling announcement that 
'•the president can appoint, perhaps remove and re-appoint; but we take it he 
cannot instruct, for the law no where says so. and hus duties also are defined by 
law:'" and stated the "position is capable of a demonstration akin to mathematica 
precision." 

True enough, it startled and astounded in more ways than one, and it is more 
than hinted that high officials at Washington city are preparing to act upon the 
theory that the President can and will instruct the district officers; that he can 
and will instruct, direct, and enforce instructions touching district officers' duties 
in matters of detail under the military bill. 

lint we are well satisfied these hints are not well founded. Better inspirations 
surely will prevail; for if not, Congress will surely make itself heard in tones not 
to be misunderstood. 

We must not lose sight of the fact that Congress alone has power under the 
Constitution to declare war. and make final terms of adjustments: and further, we 
will not saon lorget the memorable tact that the named rebel States were lately 
waging a form dable war against the government, and that although armed hostil- 
ity has ceased, a quasi war state still exists, and that under the Constitution no 
authority but Congress can legitimately adjust terms of permanent settlement and 
that in the exercise of that right they have regarded aad declared that "no legal 
Stale governments mm: exist" in those rebel States, and justly deem it their duty to 
give their earnest attention to a final adjustment thereof; in the meantime con- 
tinuing said States under the military authority of the United States, and dividing- 
said rebel States into five military districts for greater convenience and efficiency. 

In the general plan and purpose contemplated by this military bill, we find it 
akin to the fin inatiou of territorial governments for unorganized territories, com- 
bined with an enabling act preparatory to a recognition of a full State govern- 
ment, matters of more or less frequent occurrence ever since the foundation of the 
government. 

For the purpose of putting the machinery of the military bill in motion, suppose 
Congress had required the President to appoint a competent civilian superintend- 
ent, which could have been done, instead of a military officer for each of the live 
districts, and just as has been done in section two, directed the President to 
"detail sufiieunt military force" to enable such civilian superintendent to perform 
his duties pointed out by law, it is plain sueh superintendent, like the territorial 
governor, after appointment and due entrance upon duty, could not be instructed 
as to plain duties pi escribed by law. While he kept within the letter and spirit 
of the law in that behalf, he could not be instructed officially by the Attorney Gen- 
eral, nor could he be dictated to by the President, Secretary of War, or otherwise. 

Should he need military force to enable him to perform his duty under the law. 



6 



LEGAL ANALYSIS OF 



then it would become the duty of the President, if called on, to detail a sufficient 
military force, under proper military officers, to support and aid the superintend- 
ent in the performance of his duties, such as registration, "protection of the rights 
of person and property, suppress insurrection, disorder, and violence, etc." 

Now, is it not clear the position, rights, duties, and responsibilities of a civilian 
superintendent, if such the law had required, is the precise standpoint in which 
we must view the district military officer disconnected from the ordinary army 
duties and routine ? 

The great difficulty is to cut loose the idea of army officer from the idea of ordi- 
nary army duties and responsibilities as to obeying orders. 

But we must take a second thought and see that the military officer assigned to 
duty under the military bill has an orbit therein distinct from ordinary army 
duties and responsibilities, and that his new orbit is created by law to which he 
must conform. 

Many of his duties are enumerated by law and much left to his discretion: and 
considering he is independent of instructions, his responsibilities are truly great. 
He can only be checked and mated by the removing power of the President. Con- 
gress alone can control, curtail or modify his actions, or of course terminate the 
whole machinery. 

General Pope's action in the removal of tire city officers of Mobile is severely 
criticized, on the alleged ground that none of those officer; had offered any impedi- 
ment to registration or operations of the military bill. But General Pope acted 
within the clear letter of the law, which makes it his duty to protect " persons and 
property." 

A palpable need of personal protection was made . ifesl i the Mobile riot. 
Further comment on that point is unnecessary. 



[Published June 12, LSI : 

THE MILITARY BILL. Analysis Summary. 



Y^our correspondent now closes his analysis b\ the following summary of points 
covered bj the publications of May :;i>. .June i. and June 7: 

First. That the State governments organized since the cessation ot active hostili- 
ties in the ten rebel States are onlj de facto governments. Congress having solemnly 
declared " no legal State governments exist in those States.'' 

Second. That defacio applies to each <>f the co-ordinate branches ol government, 
legislative, executive, and judicial. Good during sufferance. 

Third. That the State governments organized bj President Johnson in said rebel 
were so organized by him without n tntion or anj 

IV) oft ''ingress. 

Fourth. Thai jaid attemp to organi • in the rebel States by 



THE MILITARY BILL. 9 " 

President Johnson was a palpable infringement on the plain prerogatives of Con- 
gress, wherein the constitution lodges the power to declare war and make final and 
permanent adjustments upon the termination thereof. 

Fifth. That it was the plain duty of President Johnson, on the cessation of hos- 
tilities to have convened Congress in extra session, to lav the ground work of final 
adjustment ; and his failing to do so. but undertaking it himself, was reprehensible 
and unwarranted on his part. 

Sixth. That Congress has wisely and justly set the President's work of recon- 
struction all aside by this "military bill," ind properly asserted their own legiti- 
mate authority under the constitution, by devising and promulging a plan for final 
adjustment, and complete restoration in a manner akin to territorial organizations. 
Seventh. That the military bill plainly and unmistakably points out the Presi- 
dent's duties, beyond which he cannot go, and that it is manifest that Congress 
jealously guarded against him. that they predetermined that neither the President, 
nor the Secretary of War. nor the Attorney General who are simple executive ap- 
pointees, should have power to peremptorily instruct the district commander in 
matters plainly within the sphere of his duty laid down by the law. 

Eighth. That the military officer, after being assigned to duty of district com- 
mander under the military bill, has a new orbit in which to act. distinct from the 
ordinary army routine, not being, however, entirely severed from the latter. 

Ninth. That when the supplement to the military bill declared it to be the duty 
of the officer in command of the district to " cause a registration to be made,'' Con- 
gress did not mean that the President should have again power to intermeddle, by 
peremptorily directing and instructing who shall be registered, or how registration 
shall be conducted. 

Congress predetermined that matter themselves, leaving much to the good sense 
and discretion of the officer in command. 

This idea does not preclude suggestion, counsel, and advice. 

Tenth. In this matter of reconstruction of rebel States, the district commander 
does not render an " account of his stewardship " to the President or Secretary of 
War, or even to General Grant. 

He accounts alone to Congress by showing final results in the formation of new 
State governments, to be submitted to the final approval of Congress alone, where 
the paramount authority rests. 

Eleventh. This brings us to the point before asserted, that the district officer 
must consult the will of Congress alone, as to be understood from laws enacted. 

Twelfth. That each district officr. in his orbit created by the military bill, is 
superior to any de facto rebel State government, or any branch thereof over which 
he is placed, and that he can permit the continuance of any branch of such govern- 
ment or tribunal, or he may remove, suspend, or displace any ib' f<id<> officer of 
State government within ins district, upon such causes as he shall deem satisfactory 
to himself, as in the case of the removal of the late Governor Wells by General P. 
II. Sheridan. 

Thirteenth. That it is highly improbable that the Secretary of War tcill counsel inter- 
ference by peremptory instructions. II* is himself I"" good a lawyer for tied. 

Fourteenth. That the military bill dors not mention that it shall be any part of 
the duty of the officer to revise or modify any decree < f any civil court adjudicating 
purely civil matters relating to collections, etc., but by virtue of the injunction of 
the law that it shall be his •• duty to protect the rights of person and property :" in 
order to perform such duty he may suspend or annul the execution of a pretended 



8 I.Ki.AI. ANALYSIS OF THE MILITARY BILL. 

judicial writ issued in pursuance of a colorable judicial decree founded in fraud. 
collusion, or political prejudice, and made to subserve tlie petty spleen of some in- 
dividual or individuals, and that the execution of such colorable judgment or 
decree would result in tresspass or other tort to the rights of property of any indi- 
vidual or individuals. 

What has been said as to th#power of removal of officers, etc.. is. of course, con- 
fined to State governments and tribunals — not meant to apply to the United States 
district, or circuit courts, they having been established by Congress, and conse- 
quently their origin is co-equal with the military bill. 



[Published May 30, 1867.] 

REGISTRATION. 

The Attorn* y General, near the last of his opinion, says : " The oath ilself (of the 
applicant) is the sole and only test of the qualification of the applicant. ' Again. 
" that the bo rd cannot enter upon the inquiry whether he has sworn truly or 
falsely." He states this as his "conclusion." This implies there is room for a 
difference of opinion. We clearly see a difference of opinion may and must occur 
upon the interpretation of the expression " qualified to vote," found in the first 
section of the supplement to the military bill. Two things must occur to entitle a 
man to register. First, he must be "qualified to vote" under tlie law there allu led 
to. Second, he must take the oath in the form therein laid down. Who decides 
the first question ? Here is a decision required akin to the duties of judges of elec- 
tions, and in this case properly falls upon the board of registrars. Who else can 
decide the question. " qualified tc vote?" The oath required does not negative all 
the elements of exclusion under the law deciding who is "qualified to vote." It is 
possible for an applicant to take that oath without danger of perjury, and at the 
same time have in his person a negative element of disqualification to vote under 
the law alluded to. 

If in the decision of the first question, to wit : who are '■' qualified l" vote," the 
board wrongfully and corruptly decide against a person entitled to register, then 
tli.' board are liable to a civil action for damages in the manner akin to the respon- 
sibilities of judges of ordinary elections in any of the States. The position and 
duties of the board are dedicate and responsible. But it is safe to say. no person 
proposing to perjure himself, but rejected by the board, would risk a ventilation of 
his attempt by suing the board or members thereof. Far from it. 

Another view. Suppose 'he first section of the supplement hail said it shall be 
tl e duty o 1 the commanding general to require a registry of all persons " qualified 
to vote." and then stopped, without requiring the oath of the applicant. Clearly, 
then, the board must decide who is " qualified to vote " 

This springs the question for what purpose was tlie oath of the applicant required '.' 

The answer is. to pui on paper a declaration of future attachment and support to 

tlie government and influence others to do tlie same, and also pui on paper some 

facts thai aided tlie board in deciding the first question. 

It naturally follows Irom what has lieeil said, thai the registrars look alone lo the 

district commander lor instructions to which they must conform. 

J. 1'. I'.OVD. 



L1BKHKY Uh CUNOKt^^ 



013 785 752 2 



UBRARY OF CONGRESS 



013 785 752 2* 



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